How to recover property from the Police.
How do I get my property back from the Police?
The police have wide ranging powers to seize and hold property which they believe to be relevant to a criminal investigation. These police powers stem from the Police and Criminal Evidence Act 1997 or the Proceeds of Crime Act 2002.
Many people who have had their property seized by the police at their arrest (or when subject to a police investigation) think that it cannot be returned to them. This is not always the case. Inevitably, either at the closure of the investigation or at the conclusion of a trial, the property is no longer required by the police or by the court. The property could include, for example, clothing, electronic devices, jewellery and vehicles.
I have advised and represented clients who have had property seized from them – for example expensive and sentimental jewellery or motor vehicles and successfully had items recovered. I understand that for those who are arrested, acquitted and/or convicted of a criminal offence, having their property seized is a significant stress and worry, on top of the stresses of a police investigation.
The Police (Property) Act 1897 provides the power for the Magistrates Court to make an order to dispose any property seized by the police in connection with their investigation of a suspected offence. The matter can be brought in the High Court or County Court if its complexity requires it.
What are Police (Property) Act 1897 applications and who can make them?
Applications under the Police (Property) Act 1897 can be made in favour of any interested party to that property. The interested party, in effect, asks the court to decide the ownership of the property and order where it should be delivered. This includes the police, defendant or owner.
The interested party will need to identify what property they want and ascertain whether it featured in the trial as used or unused material. If it was unused material then an should not be necessary. However, if it was used material then an application will be required. The interested party will also need to prove it is their property. For example, if the police are disputing the ownership of the property, the defendant may be able to request a record of the property recorded to be held during a stop and search. Otherwise, they may be able to provide a receipt or photographs of the property being used previously.
Applications tend to be made most commonly when:
1. The criminal investigation has concluded and the police are in possession of property recovered from the defendant. Any interested party may claim part or all of the property as either being stolen from them or arising from the sale by the thief (most likely the defendant) of the stolen property.
2. A third party might claim ownership of a vehicle recovered from a defendant, claiming it was subject to a hire purchase agreement made before the seizure of the property.
The application should be brought before the Magistrates Court if it is straightforward. If the issue is complex then the claim should be brought to the High Court or County Court.
When an application is made, a hearing will be held at the court. The interested party and the police have the right to call witnesses, cross-examine the other party’s witnesses and address the magistrates with their submissions.
The application must be made within six years from the date the property was seized.
What decisions can the court make?
The court has several options open to it in respect of the property including:
• Make an order for delivery of the property to the owner;
• Decline to return the property to its owner if it is satisfied that the use of its process indirectly assisted in or encouraged a crime (Chief Constable of Merseyside Police v Owens  EWHC 1515 (Admin));
• Find in favour of one or more of several interested parties and order delivery of the property and decline the application of others;
• Order all or the balance of the money to be delivered to the relevant police property fund; or
• Make an order for delivery of the property in any way it thinks fit.
If the application is first brought to the Magistrates’ Court, then the court will consider if the issue is complex and if it is better dealt with by the County Court or High Court. If so, it can refuse to deal with the matter and invite the parties to apply to that court.
If you have had your property taken by the police there is every chance that it may be returned to you. To do so you may wish to instruct a lawyer; people will want to think carefully if they wish to instruct a lawyer to deal with these matters as if the property is not of high sentimental value or is worth less than £50,000 it is often not cost/risk effective to instruct lawyers to pursue although each case will inevitably be different.
Quentin Hunt is a Barrister who specialises in Criminal Law who accepts instructions both through solicitors and directly from members of the public. Quentin has previously won the accolade of 'Fraud Lawyer of the year' amongst other awards.